Cogan v. KAL Leasing, Inc., 4-89-0138

• Decision Date: 19 October 1989
• Docket Number: No. 4-89-0138,4-89-0138
• Citation: 190 Ill.App.3d 145,137 Ill.Dec. 396,546 N.E.2d 20
• Parties: , 137 Ill.Dec. 396, 57 Ed. Law Rep. 193 Leslie A COGAN, a disabled person, by William F. Cogan and Rita F. Cogan, her Guardians, Plaintiff-Appellant, v. KAL LEASING, INC., a Corporation, and Alice J. Henderson, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 20

546 N.E.2d 20

190 Ill.App.3d 145, 137 Ill.Dec. 396,

57 Ed. Law Rep. 193

Leslie A COGAN, a disabled person, by William F. Cogan and Rita F. Cogan, her Guardians, Plaintiff-Appellant, v. KAL LEASING, INC., a Corporation, and Alice J. Henderson Defendants-Appellees.

No. 4-89-0138.

Appellate Court of Illinois Fourth District.

Oct. 19, 1989.

Rehearing Denied Nov. 29, 1989.

Robert D. Owen, Darrel F. Parish, Owen, Roberts, Parish, Castleman & Owen, Ltd., Decatur, for plaintiff-appellant.

Cassidy & Mueller, Peoria (David B. Mueller, of counsel), for defendants-appellees.

Justice STEIGMANN delivered the opinion of the court:

This case involves claims for injuries sustained by plaintiff, Leslie A. Cogan, a disabled minor, in a collision between a school bus and an automobile in which plaintiff was a passenger. The accident occurred when the automobile made a sudden left turn into the path of the bus.

Plaintiff, acting through her parents as her guardians, filed suit as follows: count I against defendant KAL Leasing, Inc. (KAL), which purportedly owned the bus involved in the accident and employed its driver; count II against defendant Alice J. Henderson (Henderson), the driver of the bus, and KAL in its capacity as Henderson's principal; and count III against defendant Sheller Globe Corporation (Sheller), manufacturer of the bus.

Prior to the accident, Henderson had complained of discomfort which she believed was due to her straining to reach the bus' gas pedal. She testified that her husband and one of the mechanics with the bus company had placed a block of wood on the gas pedal and fastened it with a clamp. She said this was done with the approval of the bus company's manager. Sometime before the day of the accident, Henderson discovered the block had been removed from the gas pedal. On the day of the accident, however, when Henderson reported for work, she discovered two wooden blocks had been attached to the gas pedal with tape. She did not know who had attached these blocks, but after carefully inspecting the blocks and the gas pedal for safety purposes, she drove the bus out of the garage and proceeded with her regular driving duties.

Later that day, the accident occurred in which plaintiff was seriously injured. Plaintiff's theory of the case is that the blocks on the gas pedal interfered with the use of the brake, accelerator, and other controls, and accordingly were a proximate cause of the accident.

At the conclusion of the plaintiff's case, the trial court denied KAL's motion for directed verdict as to count I. However, the court granted an identical motion at the conclusion of all the evidence. The court's reason for directing the verdict was that plaintiff produced no evidence concerning KAL's ownership of the bus. At the conclusion of the trial, the jury returned a verdict in favor of the remaining defendants as to counts II and III.

The primary issues which plaintiff raises on appeal are as follows: (1) whether the trial court gave plaintiff the special protection which plaintiff claims the law guarantees to persons under legal disability (the Muscarello doctrine), and (2) whether the trial court erred when it allowed the directed verdict motion of defendant KAL.

I THE MUSCARELLO DOCTRINE

Plaintiff was a 16-year-old high school student on the day this tragic accident occurred. She suffered devastating injuries which left her unable to walk or to communicate. The court appointed her parents as guardians of her person and her estate. Her parents, in turn, hired the attorney Before dealing with the other issues raised in this appeal, this court must address the trial court's alleged violation of the "Muscarello doctrine." (See Muscarello v. Peterson (1960), 20 Ill.2d 548, 170 N.E.2d 564.) Plaintiff argues that this doctrine, which was discussed extensively by the Illinois Supreme Court in Muscarello, stands for the proposition that a "court has a duty to see that the rights of an infant are adequately protected, and is bound to notice substantial irregularities even though objections are not properly presented." (Muscarello, 20 Ill.2d at 555, 170 N.E.2d at 569.) Citing Zimmerman v. Village of Skokie (1988), 174 Ill.App.3d 1001, 124 Ill.Dec. 618, 529 N.E.2d 599, plaintiff argues that where the trial court fails in its obligation to take action to protect the plaintiff, the appellate court must do so. Because this argument affects the standard of review to be employed when we consider the other issues raised by plaintiff, we must first decide whether either this court or the trial court is under some sort of special duty to protect this plaintiff under the circumstances of this case.

[137 Ill.Dec. 398] who brought this action on behalf of their daughter.

Plaintiff makes clear in her appellate brief how she thinks the Muscarello doctrine should have affected the trial court's handling of this case:

"This principle--going to the very heart of our legal system--was ignored by the trial court throughout the trial, even when it was specifically and uncategorically brought to the Court's attention. At no time did the court appear to consider the plaintiff's legal incompetence in making its rulings on matters before it. It is clear that the Court never intervened on its own volition to protect the plaintiff's rights from prejudicial matter injected by the defendants when plaintiff's counsel did not object."

While plaintiff correctly paraphrases language used in various decisions of courts of review of this State when discussing the Muscarello doctrine, we believe plaintiff has lifted that language out of its limiting context. As our discussion of the cases citing this doctrine will reveal, the doctrine has validity only in circumstances suggesting either fraud, violation of a fiduciary interest, or ineffective assistance of counsel.

The Muscarello doctrine first appeared in Illinois in Loyd v. Malone (1859), 23 Ill. 43. Malone involved allegations of fraud in the partition and sale of certain lands belonging to the infant plaintiffs. Noting among other flaws that no guardian ad litem was appointed to represent the interests of the plaintiffs, the court stated the following:

"The interests of infants are the peculiar care of courts, and if their rights have been outraged and disregarded by an unfaithful guardian, the courts should not be slow to apply a remedy." Malone, 23 Ill. at 44-45.

The authority cited in Malone was a 1723 decision from England, Richmond & [Wife] v. Tayleur (K.B. Ch. 1723), 1 Peere Williams 734, 24 Eng.Rep. 591. Richmond similarly involved allegations of fraud.

In Lloyd v. Kirkwood (1884), 112 Ill. 329, 338, the court approvingly cited its earlier language from Malone: "The interests of infants are the peculiar care of the courts." Again, Kirkwood concerned allegations of fraud and a violation by the guardian ad litem of his fiduciary duty for his failure to take any part in the trial court proceedings to protect his ward.

In Tymony v. Tymony (1928), 331 Ill. 420, 163 N.E. 393, the only party defendant interested in the title to the property in controversy was four years old. The supreme court found the actions of the infant's guardian ad litem totally deficient in protecting the interest of the child and stated the following:

"Whenever the property rights of an infant are drawn into litigation and the infant himself, whether as plaintiff or defendant, has been brought into court, he at once becomes the ward of the court, and it is the duty of the court to see that his rights as such are properly protected. If the general guardian who undertakes the performance of this trust, or the guardian ad litem, fails to properly McReynolds v. Miller (1939), 372 Ill. 151, 22 N.E.2d 951, concerned litigation involving certain real estate. The defendant, who was a juvenile, had a decree entered against him regarding the property. While the court again stated that courts are "bound to specially guard the interests of minors, and to notice legitimate and substantial objection whether raised by the guardian or not" (McReynolds, 372 Ill. at 153-54, 22 N.E.2d at 952), the court's actual holding was that the juvenile's "rights were obviously not properly safeguarded in the original suit" (McReynolds, 372 Ill. at 154, 22 N.E.2d at 952). The court noted that no evidence was introduced on the juvenile's behalf and much improper evidence was permitted into the record. Essentially, the court found that the juvenile was denied the effective assistance of counsel.

[137 Ill.Dec. 399] protect the interest of his ward, it is the duty of the court of its own motion to compel him to do so." Tymony, 331 Ill. at 426-427, 163 N.E. at 396.

Allen v. Yancy (1965), 57 Ill.App.2d 50, 206 N.E.2d 452 involved a personal injury claim arising from an automobile accident. The court found the record replete with error and misconduct by defense counsel. Finding that the erroneously admitted evidence was clearly prejudicial to the plaintiff minor, the court held that it "should consider those errors even though at trial the plaintiff failed to object or, where he objected, failed to specifically state the grounds on which he now appeals." (Allen, 57 Ill.App.2d at 61, 206 N.E.2d at 457.) The court then noted that because the plaintiff was a minor and hence a ward of the court, it was the court's duty to see that the minor's rights were properly protected and to take notice of any legitimate and substantial errors even if they were not objected to at trial. Again, the essential holding of this case was that the juvenile was denied the effective assistance of counsel.

In Frederick v. Zeigler Coal Co. (1978), 56 Ill.App.3d 888, 891, 14 Ill.Dec. 534, 536, 372 N.E.2d 730, 732, this court found itself "compelled to vacate and remand as to the distribution plan with respect to the award of attorneys' fees" in an appeal from an order of distribution settling a Structural Work Act (Ill.Rev.Stat.1975,...